The Sheriff of Zimbabwe and John Keith Hensman and Arrow Estate Agents

### Preamble
1
HH 130-18
HC 9851/17
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THE SHERIFF OF ZIMBABWE

and

JOHN KEITH HENSMAN

and

ARROW ESTATE AGENTS

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 5 March 2018 & 14 March 2018

Opposed Application –Interpleader

M Moyo, for the applicant

M Chasakara, for the claimant

L Dube, for the judgment creditor

TAGU J: On 21 June 2017 the judgment creditor obtained judgment against Rock Investments (Pvt) Ltd in Case No. HC 3595/14. Pursuant to obtaining the above mentioned order, the Judgment Creditor instructed the applicant to attach and take into execution the judgment debtor’s movable property. The Sheriff of Zimbabwe duly attached various properties on 20 September 2017. The claimant is now claiming all the property which appears on the Notice of Seizure and Attachment as his property. The judgment creditor is claiming that the attached property does not belong to the claimant.

The attached property was attached at number 9 Wood Lane Borrowdale Harare. The claimant claimed that he is the director of Rock Investments (Private) Limited the judgment debtor and that number 9 Wood Lane Borrowdale Harare is his personal residence. He claimed that he co-owned this property with his wife Johanna Hensman as per the deed of transfer marked Annexure “D”. He further claimed that the attached two vehicles belong to him though the registration books for the cars are in the names of his wife and daughter. Other than the two cars he claimed to be the owner of a sail boat and other household goods. He wants the attached property to be declared not executable.

In its opposition to the claim the judgment creditor submitted that number 9 Woodlane Borrowdale is indeed the judgment creditor’s address. It said the property that was attached at that address did not belong to the claimant because the writ of execution was served at the official business address for service for the judgment debtors as appears in the CR14. In other words that is the company‘s place of business duly registered at the Companies offices in terms of the law. It further submitted that the attached two vehicles do not belong to the claimant but are registered in the claimant’s wife and daughter’s names. Sadly, at law a car registration book is not proof of ownership of the vehicles in question, it is proof that the vehicles were registered. The claimant failed to produce proof of ownership in the form of an agreement of sale and payment which would at law be accepted as proof of ownership. In respect of the sail boat and household goods nothing has been produced as proof at all. Its view of this case smacks of a clearly orchestrated fraud because curiously the claimant’s wife and daughter were fired respectively from the judgment Debtor Company in April 2015 a few weeks after the property had been sold and transferred. It prayed that the interpleader proceedings be dismissed with costs and that the goods be declared executable.

What is clear in this case is that the claimant, his wife and daughter were all directors of the judgment debtor. All resided at number 9 Wood lane Borrowdale Harare. This address was also the business address of the judgment debtor as appears on the CR14. If the judgment debtor used a different address the claimant should have supplied it. The attachment in this case took place at this address. The mere fact that claimant produced council receipts for the above address is neither here nor there because the directors and the judgment debtor used the same address. The court however, noted that the claimant’s wife and daughter were fired from the judgment debtor a few weeks after the property had been sold and transferred on 15 April 2013.

In an application of this nature it is trite that a claimant must at law produce proof that the property attached in execution indeed does not belong to the judgment Debtor but to himself. Proof which is envisaged at law are things like agreements of sale or receipts for the purchase of the said property. In casu the two vehicles are not even registered in the names of the claimant but in his wife and daughter respectively. These two did not claim to be the owners of the property as no supporting affidavits were produced. Even if it is proved that the vehicles are registered in the names of the wife and daughter at law a registration book is not proof of ownership but that the vehicles were registered. If the vehicles were registered in the claimant’s names and coupled with some receipts or agreement of sale or some other document to that effect, one might have given him the benefit of the doubt. None were produced.  As regards the sail boat and other household goods absolutely no evidence was produced apart from his mere say so. This is not adequate proof of ownership.

In my view the claimant failed to prove that the attached property belonged to him and not Judgment Debtor hence the property is executable.

IT IS ORDERED THAT

The Claimant’s claim to the property which was placed under attachment in execution of judgment in HC 3595/14 is hereby dismissed.

The property attached in terms of Notice of Seizure and attachment dated 20 September 2017 issued by Applicant is hereby declared executable.

The Claimant is to pay the judgment Creditor’s Applicant’s costs of suit on an attorney –client scale.

Dube-Banda, Nzarayapenga & Partners, applicant’s legal practitioners

M Chasakara Law Firm, claimant’s legal practitioners

Maganga & Company, judgment creditors’ legal practitioners